City Research Online

Abstract

This thesis investigates how the state's environmental protection obligations can be systematically integrated within the legal framework of Investor-State Dispute Settlement (ISDS). It argues that environmental sustainability, while frequently acknowledged rhetorically, is typically marginalised in arbitral decision-making because it is not formally integrated into the ‘applicable law’. To show a systematic integration of environmental sustainability into the applicable law of ISDS, this thesis employs three methods: expository, evaluative, and experimental.

Part II exposes the emergence of environmental sustainability and its normative construction in International Investment Law (IIL). Drawing upon the traditional international law approach, it explains environmental sustainability in IIL through two sets of norms: the state's obligations to protect investments and its obligations to protect the environment. While the former is well-established in investment treaties and jurisprudence, the latter is still evolving in both domestic law and international legal orders.

Due to the increasing trend of incorporating environmental provisions into IIL, Part III evaluates a selection of arbitral decisions delivered over the years to address tensions between investment protection and environmental regulation in practice. The findings indicate a nuanced approach: tribunals typically prioritise investment protection standards, but on rare occasions, they defer to a state's regulatory rights concerning environmental protection, as the latter is not considered part of ‘applicable law’. These decisions reflect a lack of systematic engagement with environmental sustainability as a legal norm.

Part IV proposes a novel framework for incorporating environmental sustainability into the applicable law of ISDS. Through a theoretical and doctrinal analysis, it reconceptualises environmental sustainability as part of the sources of applicable law. It then revisits the selected case decisions with contextual analyses to demonstrate how environmental sustainability can be applied in similar situations.

In sum, this research adds environmental sustainability as an ‘applicable law’ in the present scholarship of ISDS and shows its systematic application in the arbitral decision-making process.

Publication Type:	Thesis (Doctoral)
Subjects:	G Geography. Anthropology. Recreation > GE Environmental Sciences J Political Science > JX International law K Law > KZ Law of Nations
Departments:	The City Law School The City Law School > The City Law School Doctoral Theses Doctoral Theses

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